Kenneth M., by counsel Rocco E. Mazzei, appeals the Circuit
Court of Harrison County's February 2, 2016, order
denying his amended petition for writ of habeas corpus.
Respondent, Karen Pszczolkowski, Warden of Northern
Correctional Facility, by counsel Shannon Frederick Kiser,
filed a response in support of the circuit court's order.
On appeal, petitioner argues that the circuit court erred in
denying his request for habeas relief on the basis of
ineffective assistance of trial counsel.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.
2009, following a jury trial, petitioner was convicted of
multiple counts of first-degree sexual assault; sexual abuse
by a parent, guardian, custodian or other person in a
position of trust; and incest. For those crimes, petitioner
was sentenced to a cumulative prison term of thirty to
seventy years. Petitioner's direct appeal of his
conviction and sentence was refused by this Court in 2010.
2013, petitioner, pro se, filed a petition for writ of habeas
corpus. Counsel was appointed thereafter, and petitioner, by
counsel, filed an amended petition for writ of habeas corpus.
In his amended petition, petitioner argued that his trial
counsel was constitutionally ineffective; that his arrest was
illegal due to irregularities; and that his indictment was
February of 2015, the circuit court held an omnibus
evidentiary hearing on petitioner's amended petition. At
that hearing, petitioner testified that his trial counsel was
ineffective for failing to strike two jurors during jury voir
dire; failing to investigate the potential testimony of
petitioner's sons; and failing to call those sons as
trial witnesses. By order entered on February 2, 2016, the
circuit court denied petitioner's amended petition, and
this appeal followed.
Court reviews a circuit court order denying habeas corpus
relief under the following standard:
"In reviewing challenges to the findings and conclusions
of the circuit court in a habeas corpus action, we apply a
three-prong standard of review. We review the final order and
the ultimate disposition under an abuse of discretion
standard; the underlying factual findings under a clearly
erroneous standard; and questions of law are subject to a
de novo review." Syllabus point 1, Mathena
v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).
Syl. Pt. 1, State ex rel. Franklin v. McBride, 226
W.Va. 375, 701 S.E.2d 97 (2009).
sole contention before this Court is that he was entitled to
habeas relief because his trial counsel was constitutionally
ineffective. Petitioner argues, as he did below, that his
trial counsel was ineffective for failing to strike two
jurors; failing to investigate the potential testimony of his
sons; and failing to call those sons as trial
reviewed the record before us, we find no error or abuse of
discretion by the circuit court. Our review of the record
supports the circuit court's decision to deny petitioner
post-conviction habeas corpus relief based on these alleged
errors, which were also argued below. Indeed, the circuit
court's order includes well-reasoned findings and
conclusions as to the assignments of error raised on appeal.
Given our conclusion that the circuit court's order and
the record before us reflect no clear error or abuse of
discretion, we hereby adopt and incorporate the circuit
court's findings and conclusions as they relate to
petitioner's assignments of error raised herein and
direct the Clerk to attach a copy of the circuit court's
February 2, 2016, "Order Denying Petition for
Writ of Habeas Ad Subjiciendum and Motion for Reconsideration
of Sentence" to this memorandum decision.
foregoing reasons, we affirm the circuit court's February
2, 2016, order denying petitioner's petition for a writ
of habeas corpus.
CONCURRED IN BY: Chief Justice Allen H. Loughry II Justice
Robin Jean Davis Justice Margaret L. Workman Justice Menis ...